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A REPORT BY THE TASK GROUP SET UP TO REVIEW THE LICENSING PROVISIONS CONTAINED IN THE CIVIC GOVERNMENT (SCOTLAND) ACT 1982
7. SECTION 40 - MARKET OPERATORS
This part of the Act provides licensing authorities with an optional power to license market operators. The section also specifies those activities that are exempt from any licensing requirement, conditions which a licensing authority is required to attach to any such licence and a definition of "private market".
7.1 The Task Group concluded that in the interests of public order and safety, as well as crime prevention, there is a continuing need to license market operators. We also concluded that the licensing provision should remain optional and that licensing authorities are best placed to determine the need for, and extent of, any licensing requirements within their area.
Conclusion
The Task Group concluded that the licensing of market operators is justified and that it should remain an optional activity.
7.2 In considering the recommendation in the COSLA Report that a new licensing regime should be introduced to cover car boot sales, we concluded that it was unnecessary, since they could already be regulated under the existing licensing regime. However, we recognised that the current definition of 'market operator' was perhaps a little vague and needed to be clarified. For example, the Task Group considered that perhaps the words "by retail" in the current definition at Section 40(4) could be responsible for some licensing authorities excluding car boot sales from any licensing requirement.
Recommendation
While the Task Group concluded that car boot sales could be regulated under the existing licensing regime, we recommend that the Scottish Executive considers whether the definition of 'market operator' could be improved to make this clear. In the meantime it would be helpful if guidance was issued to local authorities to clarify that the licensing provisions can be used to regulate car boot sales.
7.3 As part of our consideration of the regulation of car boot sales, we noted that such sales posed their own set of problems for enforcement officers, e.g. the sale of unsafe goods, unfair trading practices and sale of stolen or counterfeit goods, and that the ever increasing popularity of car boot sales is exacerbating the problem. However, the Task Group did not consider that any specific recommendations for change are required in this regard given that most of these issues can be tackled via other legislation, such as consumer protection, and through the discretionary powers of licensing authorities to attach conditions to such licences. We recognised the latter could include requiring the licence holder's details to be displayed at such sales and on notices advertising the sale, as well as the submission of the name and address of people selling goods there and the registration numbers of vehicles used.
7.4 We also considered whether, in view of the increase in the number of such sales, and the impact this was having on second-hand businesses based in premises, a licensing authority should be allowed to restrict the number of sales taking place. However, while we sympathised with the plight of such businesses, particularly given there was evidence to suggest that car boot sales were attracting professional traders, we did not see how it would be practical or feasible to restrict them. If they wished, licensing authorities could exercise a greater control over such events through the conditions they attach to such licences.
Conclusion
The Task Group concluded that while car boot sales could be problematic it would not be appropriate to introduce provisions empowering licensing authorities to restrict their numbers and that difficulties could be addressed through the conditions attached to such licences and consumer protection legislation available to enforcement officers.
7.5 The Task Group sought views on whether licensing authorities have sufficient powers to control private markets. Some respondents to the consultation paper suggested that the legislation be changed to require market operators to keep a record of individual traders' names and addresses, car registration details, etc. and that these could be obtained by the licensing authority in the event of any problems that arise after the event. Licensing authorities are however already empowered to attach such a condition to any licence issued if they considered it appropriate to do so. In considering this, the Task Group recognised that requiring a market operator to provide details of individual traders in advance of the event would be more helpful to enforcement officers prior to or on the day of the event. However we concluded that such a requirement would, in many instances, not be practical or appropriate. Another suggestion was that licensing authorities should be empowered to license all stallholders to enable more effective enforcement to take place on the day of the event. We took the view that such bureaucracy was not justified, particularly given that it would be open to licensing authorities to obtain details of stall-holders through the conditions attached to operators' licences. We therefore consider that licensing authorities have, through the conditions of such licences, sufficient powers to control private markets.
Conclusion
The Task Group concluded that, with the exception of the changes proposed at 7.6 below, licensing authorities have sufficient powers to control private markets via the conditions attached to such licences and that no changes are required to the current legislation.
7.6 The Task Group noted that under the existing provisions charitable, religious, youth, recreation, community, political or similar organisations are exempt from any licensing requirement. We sought views on whether this exemption should now be repealed in light of the increase in the number of such events and associated problems, including public safety concerns. We recognised however that such problems and concerns were liable to occur regardless of who is actually holding the sale. The majority of respondents agreed that the exemption should be removed. However, some concerns were expressed that the licensing fees might have an adverse impact on some of the charitable organisations running such events that are currently exempt from any licensing requirement. We took the view that, even if the exemption was removed, it would still be open to licensing authorities to provide their own exemptions for certain charitable events, or to alter their fee structure to ensure that charitable events were not unduly penalised.
Recommendation
The Task Group recommend that the exemption from the market operators' licensing provisions for non-commercial organisations at Section 40(2)(a) be removed and thereafter licensing authorities consider introducing a revised fee structure to take account of licences issued to charitable organisations.
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